17-000715N Terrese Franklin, As Parent And Natural Guardian Of Jamerious Wilson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 17, 2017.

Summary: Summary final order granted to Respondent as unrefuted evidence established that minor did not sustain a birth-related neurological injury. Petition dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRESE FRANKLIN, as parent and

natural guardian of JAMERIOUS

WILSON, a minor,

Petitioner,

vs. Case No. 17 - 0715N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

RICAR DO J. LOPEZ, M.D. ; AND

ORLANDO HEALTH, INC. , d/b/a

WINNIE PALMER HOSPITAL,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Fina l Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on July 10,

2017. On July 27, 2017, the undersigned issued an Order to Show

Cause directing Petitioner to show cause in writing, on or before

August 2, 2017, why RespondentÓs Motion for Final Summary Order

should not be granted and a summary final order entered finding

that PetitionerÓs claim is not compensable. Petitioner did not

respond to the Order to Show Cause.

STATEMENT OF THE CASE

On January 30 , 2017, Petitioner, T er r ese Franklin, as parent

and natural guardian of Jamerious Wilson (Jamerious), a minor,

filed a Petitioner for Benefits Pursuant to Florida Statute

Section 776.301 et seq. (Petition) with the Division of

Administrative Hearings (DOAH ) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named Ricardo

Lopez, M.D., as the physician who provided obstetric services for

the birth of Jamerious on January 1, 2014, a t Winnie Palmer

Hospital in Orlando, Florida.

DOAH served NICA with a copy of the Petition on February 16,

2017. On February 21, 2017, Winnie Palmer Hospital and Ricardo

Lopez, M.D., filed a Joint Petition for Leave to Intervene, which

was granted by O r der dated February 28, 2017.

On July 10, 2017, NICA filed a Motion for Summary Final

Order, requesting that a summary final order be entered finding

that the claim was not compensable because Jamerious did not

sustain a Ðbirth - related neurological injury ,Ñ as that term is

defined in section 766.302(2), Florida Statutes, as Jamerious did

not weigh at least 2,500 grams at the time of his birth.

FINDINGS OF FACT

1. Jamerious was born on January 1, 2014, at Winnie Palmer

Hospital in Orlando , Florida.

2. Attached to RespondentÓs Motion for Summary Final Order

is a certification of medical records from Dean Richey,

Registered Health Information Administrator for Orlando Health,

Inc. , d/b/a Winnie Palmer Hospital. Said certification avers

that the copies of the records attached to the certificate are

true and accurate copies of the original records from Winnie

Palmer Hospital related to Jamerious and Petitioner Terrese

Franklin.

3. The Discharge Summary from Winnie Palmer Hospital, dated

February 14, 2014 , documents that JameriousÓs birth weight was

1 , 152 grams. A Coding Summary from Winnie Palmer Hospital,

concerning Petitioner Terrese Franklin, dated February 19, 2014,

documents ÐNeonate bwt 1000 - 1249g w resp dist synd/oth maj resp

or maj anom.Ñ

4. A review of the file reveals that no contrary evidence

was presented to dispute the medical records from Winnie Palmer

Hospital showing that JameriousÓs birth weight was less than

2,500 grams.

CONCLUSIONS OF LAW

5. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 766.301 - 766.316, Fla.

Stat.

6. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to bi rths

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

7. The injured infant, her or his personal representative,

parents, dependents, and next of kin may seek compensation under

the Plan by filing a claim for compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. NICA,

which administers the Plan, has "45 days from the date of service

of a complete claim . . . in which to file a response to the

petition and to submit relevant written information relating to

th e issue of whether the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat.

8. NICA has determined that Petitioner does not have a

claim that is compensable under the Plan and has filed a Motion

for Summary Final Order, requesting t hat an order be entered

finding that the claim is not compensable.

9. In ruling on the motion, the administrative law judge

must make the following determination based upon the available

evidence:

(a) Whether the injury claimed is a birth -

related neurolo gical injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered per manently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

§ 766.309(1), Fla. Stat.

10. The term "birth - related neurological inj ury" is defined

in section 766.302(2) as follows:

"Birth - related neurological injury" means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant wei ghing at

least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially me ntally

and physically impaired.

11. The evidence, which is not refuted, established that

Jamerious was a single gestation and did not weigh at least 2,500

grams at birth. Thus, Jamerious did not sustain a birth - related

neurological injury because he did not meet the minimum statutory

weight as set forth in the definition of Ðb irth - related

neurological injur ,Ñ in section 766.302(2).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition fil ed by Terrese Franklin,

as parent and natural guardian of Jamerious Wilson, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 17th day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative H earings

this 17th day of August , 2017 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(C ertified Mail No. 7015 0640 0003 7650 2385)

Terrese Franklin

1714 East Kaley Avenue

Orlando, Florida 32806

(Certified Mail No. 7015 0640 0003 7650 2392)

Henry W. Jewett, II, Esquire

Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A.

201 East Pine St reet, 15th Floor

Orlando, Florida 32801

(eServed)

(Certified M ail No. 7015 0640 0003 7650 2408 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Ma il No. 7015 0640 0003 7650 2415)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7650 2422)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Su ch proceedings are

commenced by filing the original notice of administrative appeal

with the a gency c lerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).